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Brief Argues DOMA Violates Same-Sex Couples’ Right to Equal Protection Under Law and Must Be Invalidated

Schneiderman: My Office Will Fight Every Day to Defend the Fundamental Guarantee of Equal Protection for All New Yorkers

NEW YORK – In papers filed in the case of Windsor v. United States, Attorney General Eric T. Schneiderman today challenged the constitutionality of the federal Defense of Marriage Act (“DOMA”), which redefined marriage for federal purposes to exclude same-sex unions that are valid under state law. The papers—filed in the U.S. District Court for the Southern District of New York— ask the federal court to accept the Attorney General’s friend-of-the-court brief, which argues that DOMA violates same-sex couples’ right to equal protection under the law as required by the U.S. Constitution. This legal action, which follows Attorney General Schneiderman's pledge last summer to join the court battle over DOMA, follows the historic enactment of the Marriage Equality Act of 2011.

“The federal Defense of Marriage Act clearly violates the principle of equal justice under law as enshrined in the U.S. Constitution and improperly intrudes on the traditional role of states in defining marriage,” said Attorney General Schneiderman. “The State of New York has long recognized out-of-state, same-sex marriages and the enactment of the Marriage Equality Act further cements our state’s position on this critical civil rights issue. My office will fight every day to defend the fundamental guarantee of equal protection under law for all New Yorkers.”

Schneiderman filed the papers in federal court in support of the plaintiff’s motion for summary judgment in the case of Windsor v. United States. The plaintiff, Edie Windsor, was married in Canada in 2007 to her partner, Thea Spyer, who died two years later.

Following Spyer’s death, the federal government refused to acknowledge the couple’s marriage under DOMA and taxed the resulting inheritance accordingly. Windsor then filed suit, challenging the constitutionality of DOMA and seeking a refund of the estate taxes she was forced to pay as a result of the federal government’s refusal to recognize her marriage.

In the amicus curiae brief, Schneiderman argues that in redefining the term marriage, Section 3 of DOMA violates the equal protection component of the Fifth Amendment’s Due Process Clause, and must therefore be invalidated. He goes on to argue that the statute is an improper intrusion on the traditional role of states in defining marriage; that it discriminates based on sex and sexual orientation and therefore must be subjected to heightened scrutiny; and that DOMA fails any level of scrutiny because it does not advance any legitimate federal interest.

“The fight for marriage equality in New York is not over,” said Congressman Jerry Nadler (D-NY). “As the author and lead sponsor of the House bill to repeal DOMA, I applaud Attorney General Schneiderman for his bold action on behalf of the people of New York, whose right to marry is not recognized by the federal government. Through DOMA, the federal government is actively discriminating against legally married same-sex couples, and it is right for the state to come to their defense by seeking to strike down that law in court. I wholeheartedly support Attorney General Schneiderman’s swift action challenging this unconstitutional and indefensible policy.”

"Today's action by Attorney General Schneiderman is the appropriate step to protect and defend the laws of the state of New York,” said New York City Council Speaker Christine Quinn. “As the Attorney General has long said, the Defense of Marriage Act threatens the fundamental principle of equal justice under law. Now that the state laws have been changed to protect all New York families, it is time the courts repeal this discriminatory statute."

"With last month's passage of historic marriage equality legislation, New York State once again became the model of progressive social change for the nation. Now, under the strong leadership of Attorney General Schneiderman, New York is taking the next step to help strike down the unconstitutional Defense of Marriage Act,” said Joe Solmonese, President of the Human Rights Campaign. “Attorney General Schneiderman has long articulated that this federal law violates the constitutional guarantee of equal protection under law. We wholeheartedly agree, and are optimistic the federal courts will as well."

"During his campaign for Attorney General, Eric Schneiderman promised to challenge the constitutionality of the Defense of Marriage Act in the name of basic equality and fairness,” said Ross D. Levi, Executive Director, Empire State Pride Agenda. “Today, he's championing those causes because he believes all loving New Yorkers deserve the freedom to marry. We enthusiastically applaud this ambitious legal action."